Citizens Council Against Crime v. Bjork

• Decision Date: 02 January 1975
• Docket Number: No. 43397,43397
• Citation: 84 Wn.2d 891,529 P.2d 1072
• Parties: CITIZENS COUNCIL AGAINST CRIME, a Washington non-profit corporation, Petitioners, v. William E. BJORK, Director and the Gambling Commission of the State of Washington, Respondent, Daniel J. Evans, Governor, State of Washington, Intervenor.
• Court: Washington Supreme Court

Page 891

84 Wn.2d 891

529 P.2d 1072

CITIZENS COUNCIL AGAINST CRIME, a Washington non-profit corporation, Petitioners, v. William E. BJORK, Director and the Gambling Commission of the State of Washington, Respondent Daniel J. Evans, Governor, State of Washington, Intervenor.

No. 43397.

Supreme Court of Washington, En Banc.

Jan. 2, 1975.

James C. Young, Seattle, for petitioners.

Slade Gorton, Atty. Gen., James K. Pharris, Olympia, for respondent.

Slade Gorton, Atty. Gen., Chi-Dooh Li, Sp. Asst. Atty. Gen., Olympia, for intervenor.

ROSELLINI, Associate Justice.

This matter is before the court upon an application for a writ of prohibition, sought for the purpose of prohibiting the director of the Gambling Commission of the State of Washington from issuing any licenses under Laws of 1974, 1st Ex.Sess., ch. 155. The petitioner alleges that it is a nonprofit corporation, whose members are taxpayers and representatives of various business interests in the state of Washington. It alleges that the questions raised in its application are of great public interest and that an opinion of this court is needed to clarify the constitutional duties of the legislature in overriding gubernatorial item vetoes.

The action does not involve an attack upon the provisions of chapter 155, which consist of five items which the Governor of the state vetoed in Substitute House Bill No. 473 when it was submitted to him after passage by both houses of the legislature. The bill as originally passed, less nine items vetoed by the Governor, went into effect on July 24, 1974, as Laws of 1974, 1st Ex.Sess., ch. 135, and on the same day chapter 155 went into effect. The constitutionality of chapter 135 is not questioned in this action, and chapter 155 is attacked solely upon procedural grounds.

It is the general rule that one who attacks the constitutionality of an act must show that its enforcement operates as an infringement of his constitutional rights. Kitsap County v. Bremerton,46 Wash.2d 362, 281 P.2d 841 (1955). There has been no showing by the petitioner that its constitutional rights are infringed by chapter 155, or indeed that it is directly affected by the law in any manner.

The rule requiring a showing that the plaintiff's rights are affected is relaxed somewhat in taxpayer suits. We have permitted the validity of statutes to be questioned in taxpayer actions properly instituted after making demand upon the Attorney General. See, for example, Calvary Bible Presbyterian Church v. Board of Regents, 72 Wash.2d 912, 436 P.2d 189 (1967). The petitioner, however, is not a taxpayer. It alleges that its members are taxpayers, but they are not parties to this action. We cannot treat it as a taxpayer suit.

Furthermore, it does not appear that a writ of prohibition can properly be issued in a case of this kind. The original jurisdiction of this court is defined by the constitution. Const. art. 4, § 1. In State ex rel. White v. Board of State Land Comm'rs, 23 Wash. 700, 702--703, 63 P. 532 (1901), we said:

By section 1, art. 4, of the state constitution, this court has power to issue writs of probibition. When our constitution was adopted, the courts and text writers of this country generally held that the writ was to restrain the exercise of unauthorized judicial or quasi judicial power, and that the remedy might be invoked against any court, or body of persons, board, or officers assuming to exercise judicial or quasi judicial powers, although not strictly or technically a court. High, Extr.Rem. (3d ed.) § 764a. Undoubtedly this is the function the writ is to perform under our constitution. The writ, as so understood, was to prohibit proceedings of a judicial nature, but not to prohibit merely administrative, executive, or ministerial acts. (Citing authorities.) 'And, to warrant granting the writ to any organized body other than a court, it is necessary that the acts sought to be prohibited are purely judicial, and not executive, administrative, or legislative.' Spell.Extr.Rel. § 1744. If the court or organized body in the particular is acting only in an administrative or executive capacity, although in other matters it may exercise judicial powers, a writ of prohibition is not the proper remedy, however illegal such administrative or executive acts may be.

By statute, RCW 7.16.290 et seq., the superior courts have a broader power in issuing the writ and may use it to control administrative, legislative or executive acts, where such acts are in excess of the power of the person or body to whom the writ is directed. Winsor v. Bridges, 24 Wash. 540, 64 P. 780 (1901). In accord with the common law, the writ must be sought by a person beneficially interested. RCW 7.16.300. See Annots., 159 A.L.R. 627 (1945) and 115 A.L.R. 3 (1938). Availability of writ of prohibition as means of controlling administrative or executive boards or officers.

The annotation in 115 A.L.R. states, at 4:

(I)t is the well-settled general rule in the absence of a statute or constitutional provision extending the scope of the common-law writ of prohibition, that the writ lies only against officers possessing or assuming functions or powers of a judicial character, and it will not issue to prevent the performance of ministerial or administrative acts or functions.

The annotation at 159 A.L.R. 627 states, that the rule was confirmed by subsequent decisions. See also State ex rel. Harris v. Hinkle, 130 Wash. 419, 227 P. 861 (1924); State ex rel. Murphy v. Taylor, 101 Wash. 148, 172 P. 217 (1918); 63 Am.Jur.2d Prohibition §§ 1--3 (1972). And see L. Larson, Administrative Determinations and the Extraordinary Writs in the State of Washington, 20 Wash.L.Rev. 23, 81, at 86 (1945).

As this court stated in State ex rel. Bennett v. Taylor, 54 Wash. 150, 102 P. 1029 (1909), regardless of the stipulation of the parties the first duty of this court is to inquire into its power to grant the writ.

We have held that the issuance of licenses, the action which the petitioner seeks to prohibit, is not a judicial or quasi-judicial function. Household Fin. Corp. v. State, 40 Wash.2d 451, 244 P.2d 260 (1952). We there said that an act of the legislature which purported to vest in the superior court the right to reverse on a trial de novo a decision of the supervisor of banking as to whether or not a license should issue was unconstitutional as an attempt to vest a nonjudicial power in a constitutionally created court. Accord: Floyd v. Department of Labor & Indus., 44 Wash.2d 560, 269 P.2d 563 (1954). See State ex rel. Hood v. State Personnel Bd., 82 Wash.2d 396, 511 P.2d 52 (1973), wherein the test for determining whether an agency action is judicial is again set forth.

It therefore appears, that insofar as the petitioner is concerned, this action cannot be maintained. However, the Governor has intervened and asserts that the propriety of the procedure followed by the legislature is a question of great importance to him, in his official capacity. He is interested in receiving the court's interpretation of the constitution as it relates to the legislative power to override the Governor's veto of an item in a bill.

In consideration of the comity existing between the judicial and executive branches of the state government, we will treat the Governor's intervention as a request for an advisory opinion upon the questions argued in his brief. While this court is reluctant to give advisory opinions, it has done so on extraordinary occasions, a notable example being Distilled Spirits Inst. v. Kinnear, 80 Wash.2d 175, 492 P.2d 1012 (1972). We there said that where the question presented is one of great public interest and has been brought to the court's attention in an action wherein it is adequately briefed and argued, and where it appears that an opinion of the court would be beneficial to the public and to other branches of the government, it may exercise its discretion and render a 'declaratory judgment' to resolve a question of constitutional interpretation.

In the case before us, the pertinent stipulated facts are:

The House and Senate passed Substitute House Bill 473. It became an earolled bill, singed by the Speaker of the House Representatives and the President of the Senate and transmitted to the Governor, who vetoed nine items. The Chief Clerk of the House filed the bill and the veto message with the Secretary of State.

When the legislature reconvened, the House voted upon seven of the Governor's partial veto items and passed six of them by the requisite two-thirds majority. The Senate considered these vetoed items and passed by a two-thirds majority five of the six items that had been passed by the House.

The bill was returned to the Chief Clerk of the House of Representatives with a transmittal message outlining the action taken by the Senate. The Chief Clerk filed the bill with the Secretary of State, together with a message indicating the partial vetoes overriden by the legislature.

Const. art. 2, § 22, provides:

No bill shall become a law unless on its final passage the vote be taken by yeas and nays, the names of the members voting for and against the same be entered on the journal of each house, and a majority of the members elected to each house be recorded thereon as voting in its favor.

Const. art. 3, § 12, provides, in pertinent part:

Every act which shall have passed the legislature shall be, before it becomes a law, presented to the Governor. If he approves, he shall sign it; but if not, he shall return it, with his objections, to that house in which it shall have originated, which house shall enter the objections at large upon the journal and proceed to reconsider. If, after such reconsideration, two-thirds of the members present shall agree to pass the bill it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of the members present, it shall become a law; but...